going to be a pretty mundus agency. -- 2 mundus -- huge agency. i would like to -- the one thing that amazes me. is not rocket science. i have been waiting and waiting and waiting. i was really pleased to see we have pushed to the air crews threw out a little quicker and not delayed things. there is a member here in to help probably as high clearances' one can get for years. a suspect coming to the same airport time and time and time again.

another one where things happened on the server's. there seems to be no effort to recognize, gosh, they have top- secret crypto and so on and so on. is there ever a thought to take advantage of that, or are you going to keep on doing it the way you're doing it? >> certification, the answer to that is we are actively trying to -- sir, the answer does we're actively trying to expand the been there were part of the flyer program or they have opted into the global entry. we extended the program to active duty military at reagan national airport. that started last week. >> i understand, the ex-military and myself and others. i took off my uniform monday and did not work the next.

but the history is still there. >> we are actively -- >> what is your time line for "actively"? it seems simple, straightforward. record is the repair or is not. >> -- the record is either there or is not. >> there are two aspect. there is a technology piece that allows us to verify that someone that we believe they are -- there are over 6000 resistance in the program. we are doing it cautiously to make sure we are maintaining security. >> i understand that. i do not understand -- it is like discovering the we'll all

over or passing of the fact that we have spent a lot of money doing background checks on a number of people, and how many years halves -- and many years has that been going on? but i want to stop on an apologetic note. i think the personnel are working hard and are sincere and following the will see a minister raiders -- following the rules the administrators are asking them to operate by. i thought that would probably get salt. it takes the time, clogs up the process. it is pretty simple. there is an it card -- id card.

thank you, mr. chairman. >> i yield myself 5 minutes. first, i would like to thank you for taking the time to be here. i am in the position of being the one member of congress to serve on all three committees to have jurisdiction over the csa -- tsa. i spend a lot of time with this issue, as well as charting the services of the tsa. i'd like to say almost without exception, but there are exceptions, the employees i've met in my travels have been courteous and professional in nature.

however, as part of preparing for this, just like chairman issa, i went to my social media sites for comments, and i received quite a few negative comments, and without objection, i would like to get those injured in to the record as well. >> so ordered. >> i wanted to talk about some problems that people have reported with the tsa. the tsa is squeezed into spaces and airports not designed for that level of screening. we had one in the news at this last week. the gentleman in the wheelchair. it seems like at some point, if we could just use some common sense and slow down a little bit and offer to do some of the screenings, you know, in a private area. it is worth spending a little

effort bond creating spaces that are more friendly, that we might be able to do better there. i just wish we could code should be -- coach the tsa and the traveling public not to get worked up, because there may be better ways to do this. about six months ago, i think i commented in one of these hearings, check in at a kiosk, and my staff to the tsa. now the tsa is at least asking me for my full name. it seems like it would be better if there was a little more engagement. would you like to comment on that? >> first, if i could -- every

passenger who travels through checkpoint is entitled to private screener on request. >> it might be something you can apply for, and especially for the elderly and disabled and children. >> and the video from last week was over two years old, and with the policy changes last month -- last fall, we've seen a dramatic decline in the number of times we have had to bat down children and the elderly with our new program. -- pat down children and the elderly with our new program. our officers are trained to observe signs of deception, fear, and they are different than the other traffic. >> there is no way to test that. you cannot imitate those behaviors, correct? >> hasn't any deterrents program, it is very difficult.

>> -- as an air -- as in any deterrents program, it is very difficult. >> i am dusting off my global entry card, because i am looking forward to being able to use that. >> we intend to roll it out to be 35 biggest airports by the end of this calendar year. so far, we are on target for that. we continue to roll out a couple of weeks -- a couple a week. >> e s&p 500 fairmount of time studying what the -- you spend a fair amount of time studying what the tsa has done. do you see some things you should be doing that you are not doing? >> i cannot think of anything off the top of my head.

we can pleaded -- we completed a large body of work. we think we're having a positive effect on the program. tsa has been very receptive to most of our recommendations. >> i see in that time. hopefully we will get to a second round of questions. i will recognize the gentleman from virginia for 5 minutes. >> i think we need to start, positively recognizing the mission here. how do we craft -- graft protective measures to protect the public?

in that a democracy, it seems to me we ought to be arguing about this all the time. it is my right to be protected. it is a natural tension and not necessarily a reflection on the men and women trying to fulfill this mission. the men and women who have been recruited are doing, on balance, a very good job. as the chairman indicated, there are occasions when that has been the case.

one thing i would just say -- simple training and please and thank you would really belong way the bank -- go along way. i wish people could remember that. parking orders is not -- barking orders is not appropriate. i would urge you strongly to make sure, i know it seems simple, but it's on at the traveling public's and nurse. -- traveling public's nerves. what we are trying to do is get compliance. most of the public is able to tolerate intrusiveness. i think we would also go along

way to understanding the compliance, knowing we are all in this together. >> 200 entities were ranked as the best place to work. it was in the bottom 5%. of federal agencies. as "yeah, i would like to work their." it was second to last in pay and family friendly policies. >> i am aware of that survey. i would like to comment. gao is consistently ranked near the top. i saw the scores for tsa. i think that reflects a large screening work force that has

somewhat stressful job. they are interacting with the public day-to-day. it is not clear to me what the department was doing on that. we have work underway. >> i am going to give you an opportunity to tell me that. would it surprise you to learn it was 13%? >> if that is accurate, it would not surprise me, no. >> and 10% for the last five years? higher than the average federal agency. >> anytime an agency experiences that kind of turnover, there is that kind of challenge. >> given the nature of the mission, should it not concern us we have low morale and high turnover and that could affect the performance?

>> i am not sure what the causes are. >> putting aside causes. with that not suggest we're putting in danger the mission? but i am not that enthusiastic about the mission or i do that even care about the mission and i do not like my boss or the agency. what is the impact on the traveling public if they are not carrying out their mission? >> i will not ask any more, but if he would not -- if you would not mind asking mr. mclaughlin to respond to that? >> thank you. to your comment on training, i am pleased to let you know that earlier this year, we began an initiative which is training that all tsa employees and their managers will focus on, which focuses on empathy, and

communication techniques that hopefully will improve that experience. the caveat being airports are the most busy and allowed places and sometimes it is hard to balance the need to communicate and be heard without being over, so to speak. there's a difference between -- please put your hands up and "please put your hands up!" we're working to get that training is complete by december of this year. my goals for -- my goals were 6% attrition for full-time, but the overall number might be excused somewhat by bad data. with regard to what we're doing to improve their standing in the best places to work, i can tell you that being an employer in the private sector and now in federal service, having worked

with thousands of employees, i will tell you i am very proud of the dedication of my work force and their commitment to the mission. overall, their focus on the mission is not consistent with the rating we receive. that being said, we have a number of initiatives to improve the overall morale. they have a national advisor recounts all. they have training like the one i described with feedback from officers. one officer described it as a like changing effect. and i would also say it comes with the newness of our agency. is keen to have a different growth curb then an agency -- it is going to have a different growth curve. >> now let's go to the gentleman from minnesota, a former airline pilot himself.

>> thank you, mr. chairman. expert, i do not know about that. and user, definitely. hat everyone was to be safe. -- everyone wants to be safe. thank you for the coast guard. just a couple things. i see spot developing into something more like we see in israel, going through more proactive challenge reply. let's just deal with the now. so, we hit spot, go to the screen areas, and 30% are seen by ait machines. >> according mclaughlin to mr.

-- according to mr. mclaughlin, that is correct. >> are it's 100% -- are ait's 100%? >> any technology will allow limitations. >> the metal detectors are a little bit less. only 30% of the people have gone through the first phase and are going through 30%. then they go through the ait

machine, whereas the other 70% have gone through metal detectors that are less safe, but not as good. ok, we go to the gate. you have the gate agent, make sure you get on the right aircraft. we have some security here, but there is the possibility something could slip through. this talk about the aircraft. -- let's talk about the aircraft. we have nearly 1 million airport workers that are credentialed. they have direct access to non- public areas, and they are working in the shadow of the airplane. could you tell me how these 1 million workers are

credentialed? >> there is a secure identification display, and they are essentially vetted from databases and criminal records. >> we have seen recently drugs being smuggled on aircraft, drugs in and around the aircraft. is it fair to say there are holes in this program as well. >> so we have a potential going to the aircraft, passengers being screened, having a very good potential and just and equal opportunity of a potential -- of items being put on board

the aircraft, perhaps in the shadow of the credentialed workers. my question to you, and i am going to give you a very good one, if you do not mind, sir. and i say this with all due respect. the potential of having someone with bad intent coming on the aircraft, with a device on board the aircraft in the shadow of that aircraft, if that aircraft gets underway and is in the year, what are the line of defenses capable in the air at that time? who is the last line of defense, mr. mclaughlin. and do not say the cockpit door. >> there are multiple layers in

place. we do have air marshal's. the ultimate layer that is an important player today and we talk about it from time to time is the actual passenger. that individual who learns as many lessons on 9/11 as the rest of us have learned. >> true. but a professional terrorist has done this routine 100 times. they know when that cockpit door is going to be open. may know when it is going to be closed. they know lot of things about the aircraft that your average member of the public does not know. my question -- there are certainly not any fams available per flight. y on god's green earth would be cut in half a volunteer program that protects the aircraft for $15 per flight? why would we do that? >> i cannot discuss that's topic because is not my area of

expertise >> i can reinforce of the layers that are on the ground, including the work we do in and around the airport. we can take that question for the record. >> i would appreciate that. the program is being cut in half. it was the last line of defense for many terrorist wishing to take that aircraft and using it as a weapon of mass destruction. i would appreciate your information on that. >> thank you very much. we will recognize the gentleman from tennessee. >> the tsa personnel have all been courteous. they have a tough job having to do a monotonous gig. they are not the most popular

people to to see. the other is about the twic cards. they are important, but it seems like there could be a better way to allow the people who receive them to pick them up. improvement in that system would be helpful to my community. who is the expert on the process at the airport? >> the airport would be myself. >> today, i was asked to take off my watch. why? >> i was not there with you. it is possible that the officer working to facilitate the travel of customers might have felt that it would alarm and you

would have had an easier experience by removing it. you are not required to remove your watch. >> everybody was. she was announcing, take off your watch. if the light is on, they will not pass you. they say, it will save you cost in the future. that is not epa's job. nor is it your job to make it less likely. i do not get it. it makes no sense to me at all. she said, you've got to take it off. the rules need to be consistent. for a while, we did do shoes. shoes must be looked laid flat on the conveyor belt. is that a uniform rule?

>> at one point, we change our procedure. we have subsequently change that back to allow them to be placed in a bin. >> it is not a big deal, but sometimes your shoes get crushed. i am comfortable in my manhood, the guy was fine. i did not have a problem. when i got out, he wanted to pat me down. the machines must have messed up is all i can figure. >> i cannot speak to your specific situation. i can look into it for you. >> it's just seems like there

should be some consistency. the machine might be set at different levels or something? sometimes you go through and they want to look at your arm or this or that? whatever. i am not the bionic man. it makes no sense. >> the role is to be uniform and consistent. we want to be random and unpredictable at times because we find that is helpful in terms of our work and security. we are looking for a uniform and consistent experience for travelers. i am happy to follow up. >> there probably should be some type of a system where you have your most frequent fliers, up one day, there was this lady, she has the richest woman -- she has the richest husband in town. they were going through all of her stuff.

sometimes, it just takes a little common sense. how much did the process cost us? >> i can take that question for the record and get back to you. >> that was a loser from jump street, too. if you are a terrorist you would go to the line that did not have it. it did not work, so the terrorist could have chosen either line. if they looked at you closer in the other line, why did they look at you closer? it was really bad. otherwise, all of the tsa people are great.

it is a tough job and i know you will make it better. >> the staff informs me they were around $30 million. the same situation exists today. i fly home on american, sometimes on united. if you are going to united at dca, you go through a full body scanner. if you are going through american, you go through eight metal detector. it does not take a rocket scientist to recognize a potential issue there. >> i had a conflicting schedule. i apologize. these questions may have already been pursued. what has been the total cost of the program to the federal

government and the private sector? >> to date, the program cost approximately $374 million. that would include $100 million in appropriations. $274 million in user fees for individuals. >> that is the federal government and the private sector? >> yes, sir. that is the appropriated money to start the program. $274 million in user fees when you enroll. >> thank you, sir. what is the amount of money you allocate for the administration a jerrick? >> about 2 million looking at commercial off-the-shelf technology. >> that is 2 million allen- annually. >> to date. that included the day-to-day expenses. this is part of our mission set. >> how many coast guard personnel are dedicated to oversight of the program?

>> twic is -- those exist at all their sectors. we recently shut down a facility in miami because it did not have the appropriate safeguards unrelated butthere were literally holes in the fence line that would allow people with no business to enter into those facilities. >> how long has twic been online? >> it was implemented on april 15, 2009. on that milestone date, all facilities were in compliance. the reader will be critical as we go forward. that will be the next enabling mechanism. the biometric chip is what provides the next level of

security. >> thank you, gentlemen. >> thank you very much. >> i think the committee for allowing me to participate today. this is an issue that is important to my constituents. mr. lord has mentioned constituent satisfaction, customer satisfaction as a goal. i would just commend to you, looking at the economist magazine, pole. they have up right now. they're asking whether the changes to airport security have done more harm than good. at last check, it was 87% agreed that changes have done more harm than good. gentlemen, i would contend that we are not doing our best i customer service.

i think my colleague from the other side of the aisle spoke well to that. i want to talk to you about the vipr team. my home state of tennessee became the first state and the country to deploy vipr teams simultaneously. the teams included explosive detection, a k-9 teams. my office was informed that the point of operation was for tsa agents to recruit truck drivers. those involved in the operation were only supposed to be handing out recruitment brochures. since neither position has

actual federal law enforcement training. however, i have a couple of posters. if you look at these posters, i will call that exhibit a. if you were watching the video of this transaction, you would see that this individual, who is designated as an employee, is walking around and inspecting the trucks. if they were supposed to be handing out brochures, what are they doing inspecting the tracks? what type training do they received to detect abnormalities or potential threats in semi trucks? >> the vipr you referenced was a joint training exercise. 23 different agencies, both federal, state, and local. tsa was invited to participate. the exercise went off very well. it was an important opportunity for us to build relationships to ensure that in the event of a

real national security emergency, we have the types of relationships -- >> you are using my time. what type training do they have? to detect the abnormalities that would be on our nation's highways? they have no federal law enforcement training, correct? >> during the exercise, the officers did not conduct any screening of the vehicles. >> let me put up poster number two. why did they ask to open the top of this truck and look -- was there a specific threat to to tennessee highways on october 20, 2011? was there any intelligence suggesting that a suspected terrorist may be driving a semi truck across tennessee?

were there specific threats that were deterred by conducting this operation? >> i cannot talk about threats that might have been deterred. this was a training exercise, not an exercise based on active intelligence. >> ok. do you have anything to add to that? >> no. >> you don't? i want to go back to this question. what type of specific training do they have to be on the nation's highways conducting this type of searches? >> they do not receive specific training with regard to screening vehicles. >> ok. >> a the k9 team appears to be a multi modal dog that is trained

in that mode of transportation. >> even though they have no federal law enforcement training, you are pleased that are participating in these exercises? >> again, the program is set up to provide a visual deterrent and to work in conjunction with their state and local partners in all modes of transportation. part of that, again, is to build a relationship in times of an exercise. >> they have been administratively it reclassified probing screeners and given no federal law enforcement training are going to be out on our nation's highways and seaports participating in this type of activity? >> i am not sure i understood that as a custom. >> based on the performance that you have seen with the teams, and their ability to

prevent specific terrorist threats, what kind of grade would you give them? >> i think they do a very good job in a mode of transportation where we have very limited resources. i think they do a very good job of providing visible deterrence to people who might be attempting to do something bad. >> a to f? >> i would not be experienced to say specifically. b+ to an a-. it is a program that is only five years old. >> i would remind you that your agency has agreed that performance measures need to be developed for the vipr team so there can be some quantifiable data. we will follow that as we move forward. one last question, have they ever pulled over cars or vans?

>> i am not aware of a tsa assets on a team pulling over a car or a van. >> i would love to have that answer. there is no terrorist that has ever driven a semi truck. we find it very curious the method that was being employed with the team's. you can go look at the example. >> thank you very much. we will now start our second round of questioning. i will give it a go for five minutes. and then we will go to mr. cummings. >> as we talk about the spot program, if an agent were able

to see something they considered to be a suspicious behavior, what is the follow-up? what can they do? did they engage the person in conversation? what is the procedure? is there something they can do? can you tell me what that is? >> in our spot program, our officers are trained to observe the behavior and engaged in casual conversations with individuals. if the circumstances warrant, they can engage local law enforcement for further follow- up. >> if they detected something suspicious, i can stop them from boarding the plane? >> if they can physical detain an individual, spot officers are not trained, nor do we want them to physically detain an

individual. >> i just walked on and get on my plane? they cannot stop me. >> i misunderstood your question. a spot officer, if they have reason to believe that you are suspicious, can engage in local law enforcement officer, who will interview you and either send you on your way it or asking additional questions. >> has a spot officer ever stop somebody from boarding a plane? >> not to my knowledge. there are times when a spot officer will engage in conversation, but i do not know all the time when an officer has stop someone from getting on a plane. >> how much are we paying these guys? >> are spot officers are paid in the same range as our federal officers. somewhere between $37,000 and $50,000. >> whether or not they could detect surgically implanted

explosive devices. the unanimous answer was no. on july 6 of 2011, the tsa released a notice to airlines. earlier this month, someone posted a video on the internet demonstrated how to defeat these machines. why do we continue to spend hundreds of millions of dollars on technology with such obvious and vulnerabilities? >> i would point out that recently, our our administrator testified with regard to effectiveness.

he will be able to get into more detail in a classified setting. on a daily basis, we review of vulnerability is in our system. ait is our best deterrent and detection against metallics threats. >> that is not our current plan. based on our evolution would risk based security, we're looking at the best way to deploy the best assets we have and configurations that makes sense across the system. >> are they getting deployed in a timely manner? i know there are some warehouses that a lot of this equipment sits in.

we were not using modern deployment techniques. >> to my knowledge, there are no ait's in the warehouse that you referred to. art utilization numbers are improving dramatically on a daily basis. >> where are you getting a safety evaluation on these machines? for tsa agents operating them? the airline staff are diverted through. i saw a pregnant officer, right by one of those machines. i was concerned because i understand there are no safety checks there. >> this is the one that uses radiation. there have been three

independent studies, one from the fda and the u.s. army. the machines are subjected to regular testing to ensure that they fall within safe limits. with every test that has been conducted, the units are well below established limits. all the tests are available john tsa's public website, tsa.gov. >> i am comfortable with what i heard. if you are interested in having as conduct follow-up, i can talk to your staff. >> we will be in touch. i now recognize the ranking member for five minutes. >> the audit found that tsa had inadequate screening systems in place.

to deny the issuance of twic to them. what steps have you taken to address these findings? >> the first thing we did was we created an executive level of oversight board coordination with dhs to map our strategy to address these recommendations. after receiving the report and recommendations, we retained the trusted agents, the individuals that collect the information at the enrollment sites. we also made system modifications that allows us to collect more information on the documents that are collected. they could be reviewed more thoroughly. on the longer-term plan, but we are making arrangements with the u.s. system so we could send our fingerprints into that

repository and check our fingerprints that we had against the fingerprints in their repository to see if anybody is applying under multiple names or identities. the other long-term project we're working on this capability with fbi. currently, we are required to submit fingerprints each time we want a criminal history records check. the want to see if we can submit to the fingerprints we have on file to the fbi to get a criminal history records check without calling somebody in to submit a new set of prints. it will tell us if the individual has committed some type of criminal offense and

between the applications to make every five years. there is a number of things we are doing. we took the recommendations very seriously. >> during a hearing on twic in may of 2011, mr. lord indicated provide a normal driver's license is as least as secure than a twic. is a twic more or less secure than in normal driver's license? >> for the twic, we think it is a secure a credential. prior to, you could go to a port and gain access with multiple credentials. a credit card, a union card, any number of credentials. the first thing i would say is that it is the first time in a

common credential has been issued in the maritime environment. we developed many security features to put on that card. we did that in coordination with other agencies, including the forensic document last at ice. we did the best we could to make that cards secure. it has a biometric on it. the readers are not in place yet, but the coast guard has portable readers to do the checks. >> section 809 of the coast guard authorization act of 2010 and since mariners cannot need access to secure area of a vessel from the requirement that they obtain a twic. it still requires those seeking their first mariner credential to visit a twic enrollment center. to complete the enrollment

process and pay the enrollment fees. i understand that the exemption has been estimated by the coast guard to apply 60,000 of the 210,000 licensed mariners in the united states. is that correct? >> that is correct. we've only had 68 take advantage of that 809 provision. >> why do you think that is? >> they see it as an employment opportunity. for an employer, in this competitive environment, they see it as advantageous to have that credential. >> i see my time has expired. >> thank you very much. there are quite a few other questions. some of the other members have had to leave.

i did want to ask some additional questions. with that in mind, we will be submitting additional questions in writing to complete the record. without objection, i would like to leave seven days open for members to submit those questions and opening statements. i would like to thank each and every member of the panel for being with us. i commend you for your service to the country. i encourage you to look for ways to improve with you and your agencies are able to do to better served and better spent more efficiently the taxpayers' money to provide a safe transportation environment for all of us. thank you for being here. we're done. [captioning performed by national captioning institute]

[captions copyright national cable satellite corp. 2012] as >> tharoor morning, we

continue our look at the health care arguments. there will recap the arguments for monday and the individual mandate. we will get perspective on the provisions constitutionality from two law professors. "washington journal" live every morning at 7:30 a.m. eastern on c-span. next, general john allen, the u.s. commander in afghanistan, talking to reporters on military operations there. he gives a report on the investigation into the killing

of 17 afghanis. sgt. robert bales has been accused of the killings. this is 30 minutes. >> ladies and gentlemen, good morning. some of you may have seen my testimony from last week, and i have seen a good bit of the coverage, so i expect you are familiar with the points i made on the progress we're making. i will not repeat it, but i would like to make a few points before we take your questions. in the case of staff sergeant bales, i extend my sincere condolences to the loved ones of those who were killed and injured in that senseless act of violence. i extend my sympathies to the bales family. they deserve our support as they come to grips with the drastic

changes that will cause a change in their lives. charges have been preferred against staff sergeant bales. compensation payments to the families of the victims have been paid, and criminal and administrative investigations continue. because these investigations are ongoing and jurisdiction has been passed to officials at base mccord, i will not be able to go into more detail today. the investigators have and will retain my full support to let the facts take them where they made. we must let the process is played out in their own time in accordance with our own regulations.

speculation in the media and through anonymous commentary serves no one's purpose in our interest and in our earnest desire to see justice done here. set on the issue, future troop levels, i was clear in my testimony after september i will conduct an analysis of the kinds of power and combat power we need in 2013. i believe the power to be significant, but i do not say it will be to rest at any certain level to route this year or 2013. there is no way i can know that right now, certainly not until we have emerged from the fighting season and after i have had a chance to assess the state of the insurgency, operational environment we anticipate in 2013, and the capabilities of the afghan forces going forward. it is not just a matter of what to do with remaining 60,000 u.s. troops. i must carefully consider the

combination of forces in the theater. there will be some 40,000 isaf forces in the field, and increasingly capable and numerous afghans security forces. force levels will represent a composite number, which is a key point, of the international and indigenous force. it is not just about the numbers, is about the operational environment we find ourselves in 2013. we have done much to degrade the taliban's capability, to deny them resources and sanctuary. we need to get to the fighting season to understand the combat power we will need in 2013. i have given my president and the chain of command to think through, and i have their support to take the time i need

to develop those options further. a word about transition. i meant what i said about transition been the linchpin of our success. of the priorities i laid out when i took a man, the first of these was to keep up the pressure on the enemy, and we have done that. a very close second was to focus more sharply on our efforts to grow and develop capability -- they are better than we thought they would be. they are better than they thought they would be at this point.

i use an example of the bravery and skill which they demonstrated that when they attempted to quell violence that resulted from protests last month, bravery that cost them to lives and more than 60 wounded. i can easily point to the thousands of operations, some large, some small, that the conduct alongside isaf troops can in the lead as to go forward. in last two weeks, afghan security forces across the country on their own killed nearly half a dozen insurgents, including some who were planning to assassinate an official. it is not just about the army doing good work. the police have been contributed to see the security and the cities and towns, most recently protecting celebrations. people will look at these and

other examples and say they are anecdotal that we still face real challenges in ethnic composition, and even corruption, in some of the ranks. i'm not saying things are perfect trade much work remains to be done. for every tribe accepted and for every insider threat for what is known on a green-on-blue incident, and we had one overnight, as two young british soldiers were killed, for everyone afghan soldier that does not return from leave, i can cite hundreds of examples where they do perform their duties, where the partnership is strong, the confidence of the forces is building, and where the trust and confidence we have in them and they have in themselves grows steadily. this would make the argument otherwise will never convince me that these brave men do not have the will to fight for the government and for the country and for their fellow citizens. that willingness is the thing most hopeful about the entire effort of transition.

they want this responsibility, they want to lead, and we're on to help them to do that. with that, i will happily take your questions. >> general, one housekeeping thing. there has been confusion about the jump in the number of casualties. maybe you could address that briefly. but considering the corruption and the green-on-blue incidents, can you tell about how the united states can give the afghans some advance notice or use some warrant procedure for the night raids, and how do you think that to be done without damaging operations? >> i am getting your one question in three parts here, so give me a second. there was an increase in the number of what we believed to have been those who were killed in this event. the number increase was based upon the initial reporting by the afghans, so we should not be surprised that as the

investigation went forward that an additional number was added to that. that was something that we understand and we accept, and as the investigation goes forward we will get greater clarity on that. on green on blue, we will continue to partner with the afghans. we have done that significantly and the last several months treat the afghans themselves who also suffer from what is called green on blue, they have taking a lot of steps themselves. they have worked closely with in the national director of security to place counter intelligence operatives inside their schools, recruiting centers, inside the ranks to assess the potential emergence of an individual who can be an

extremist or in fact a taliban infiltrator. we have taken action within isaf, to better prepare our forces across the board. between what the afghans have done for themselves, what we are doing, and how we partner together, we seek to reduce this strategy to the maximum extent possible. with respect to the night operations mou, we are at a delicate moment in the negotiations. i am confident we will end up where we want to be on both sides, and i will leave it there. thank you for the questions. >> general, about a month ago, the afghan interior ministry,

there were two officers murdered. afghan officials said they had a suspect. recently you told cnn there are no suspects. could you elaborate on where that investigation stands come and how could there be no suspects were the building is highly secured, cameras, people would know who is going in and out of that building? >> we will need this to develop more. there's still significant investigation that remains, not on who they believe might have been conducted the shooting, but ties may have been elsewhere outside the building into the taliban. or investigation needs to be conducted. [unintelligible] not that we have been presented

at this point. >> have you allowed advisers to go back into the ministries? >> i have permitted my commanders to do assessments in the areas where advisers are involved. they will come back to meet with their assessment, that the situation is now sufficiently secure for our advisers to the back. most of them are back. we will continue to have died with the security situation as it develops. >> if i could follow up, general, there were 15 isaf service members have been killed, almost 25% of all the casualties so far this year. what accounts for the increase in these kinds of attacks on isaf forces? do you consider it a significant threat, and is there evidence that the taliban is purposely planning, infiltrating the afghan forces, or are these random acts?

>> mattel that takes credit for all of them, when the majority are not a direct result of taliban infiltration. it is no secret that taliban has had as an objective infiltrating the ranks of both peaks ansf and those elements that support us and our camps. it is difficult to tell right now whether this is an increase in the operational tempo, but we can all probably assume that with some of the incidents that have occurred in the last several months that that has been a potential causal factor in some of the extremism that resulted in a green-on-blue events. >> how can they work side by side and in many cases city in the same encampment with this kind of threat looming over them? >> in many cases the

relationship is very strong. in most cases, the relationship is very strong. they know each other well. we have taken steps necessary on our side to protect ourselves with respect to sleeping arrangements. the posture of our forces to have someone always watch over our forces. on the afghan side they are doing the same thing. they are helping the troops to understand how to recognize radicalization, merchants of extremism in individuals who may be suspect, but they are also being trained and through the use of the nds, they are very quick to be able to report this

up. there have been some breakthroughs in afghan investigations in arrests that have been made of elements that have been found in ranks that potentially could have been a perpetrator for green on blue. question is an important one, and we watch this very closely. thank you. >> to what extent are you concerned about revenge killings based on the bales case, and perceptions in afghanistan? >> i do not connect them two of those. in any case, it is prudent for us to recognize that revenge is an important dimension in this culture. we would be prudent ourselves in looking for the potential for

that to emerge. it is something we will keep an eye on. i have seen no indications yet that it has emerged as a potential factor, but we will keep an eye on that. >> second question, two major challenge as you pointed out last week in pakistan, corruption and safe havens creek what level of degradation to the safe havens unique to see over the next year to give the president some comfort level that the safe havens will not be utilized by the taliban? >> we will need to see the cross-border movements. we believe as a result if you have been following the reduction in an e-initiated attacks over the year, if we see that a second year, we believe there will be important indicators were the safe havens are in fact or are operationally relevant to the

insurgency. we will continue to push for as much velocity as we can achieve in the integration. that has helped us, recalling that many folks who live in safe havens live in afghanistan, they are there for a short period of time, if we can accelerate reintegration, that is a means of neutralizing the safe havens. then the process of reconciliation. it is a peace-making process which could have a political outcome emerge in conjunction with the reintegration process. it could deflate the value of the safe havens ultimately because many insurgents home rather than become continue insurgents. [unintelligible] we would enjoy a pakistan military assistance across the border, but they are deeply engaged across the board.

in the last couple years, they have suffered 3000 dead and a couple thousand wounded, and they have a an ied problem that is essential as well. i would not purport to dictate to the general how he should conduct his operations. there are vigorous operations across the border, and my hope is as our relationship continues to unfold we could perhaps cooperate with complementary operations across the border. >> [unintelligible] >> given [unintelligible] d you think there is a problem with leadership by your senior nco's? have they been worn out by the pleaded deployment, so there are missing things or not enforcing things with leadership break down a common thing between your incidents, the

koran burnings, and what might you be doing about that? >> each one of those was a result of a leadership failure in some form or another. as i understand your question, as i think back across how many tens of thousands, hundreds of thousands of our forces have served in afghanistan and these incidents have been so infrequent, and as i know the force myself, and i have to speak or as a marine than a soldier, although i believe there is no difference in the institution of the army and marine corps in this regard -- after this period of time of war, we find our staff nco's and our noncommissioned offices are extraordinarily well trained. repeated tours in afghanistan

and iraq do not inherently reduce the effectiveness of the force or reduce the effectiveness of some all unit leadership. over the years, and our school systems, and i spoke to one of the schools at quantico, the kinds of institutional emphasis by our great army and marine corps on insuring the high standards of leadership and supervision are not just sustained, but enhanced, still remains at the core of those two institutions. those were failures. when i think back across so many of our service members that have served successfully in afghanistan, i am encouraged by the nco leadership. we can always work to look at the individual incidents in and

after-action review to make sure we understand how they occurred, and then learn from them and world those lessons learned back into our training institutions and our leadership academies. i'm confident that the institution is solid and we will continue to work to develop a small unit leaders about which you know in a counter insurgency is were the most important issue occurs on any given day. >> can you explain why those decisions to pick out compensation to victims' relatives, before we have a verdict? >> it is a natural and cultural norm that we would pursue. we have done that in the past. in this case, it was appropriate, we believe, given

the circumstances of this particular tragedy. >> can we get a total of the compensation paid out for this incident and the war on a whole, and can you explain how it is done? suitcases of cash given to families? >> we will get you that information. >> can you elaborate about the defense department ordered review of the anti-malaria drug? >> i was made aware of it this morning. the review is a natural course of periodic reviews, as i understand it, within the department. that is the best i can do for you. >> you were not told there was a concern about troops that were deployed, being given this drug? >> no. there are reviews constantly of our procedures. that is not uncommon. when i hear one of the anti-

malarial drugs is under review, that is an important process that is pursuit regularly. would suggest you ask them that question. >> when you expect the border with pakistan to be opened, and had you asked that the haqqani group be listed as a terrorist group? >> i do not know when the border might be open, but there is a review of relationship under way in the pakistani parliament, and i believe probably as a result of that review the policy relationship by the parliamentary committee on natural security, we might find a recommendation in that

review. otherwise, i have no particular indicators at this point. >> haqqani group to be listed? >> i did, yes. the investigation was clear that there was no criminal dereliction of duty found in the investigation, but i took administrative measures. >> do you shake the analysis that most of the heavy lifting for transition is on track to be completed by mid-2013? how will that affect your analysis of what continued troop components you will need? where are you looking for that distribution to go? >> those are two very different questions. i am not sure that there has been analysis that says the heavy lifting in transition is

done by the latter part of 2013. what will happen, if you know about the lisbon transition, there are five tranches of afghan geography that move into a process of transition. the fifth and final will occur, president karzai will announce it in 2013, we will begin to implement that tranche in the early fall, and with that technically when ansf moves into the security lead. the process will continue until we reached the end of 2014, where ansf will be in control across the country. we will then be in support of the ansf as they move into the lead for security across the country. >> deep you think we are on track to do that, how did that

impact -- >> thanks for the followup. as you might imagine, some of those components, the elements of the tranche 4 and 5 are in the east. we anticipate in the natural course of the campaign, which will emphasize this coming year consulting our holes in the south while conducting operations in east, we will see eventually a confluence of the movement of geography into the transition process and the campaign seeking ultimately to facilitate and accelerate afghan security operations in the south and ultimately in the east. >> they will come together in 2013? >> probably, but it will continue in 2014. >> secretary panetta has

suggested that we are not going to see the end of these and this is part of the price of war. would you agree with that? >> i think it is a characteristic of counterinsurgencies that we have experienced before. we experienced these in iraq, in vietnam, and on any occasion where you are dealing with an insurgency and where you are also growing and indigenous force, which will be the principal opposition to that insurgency, the enemy is going to do all they can to disrupt both the counterinsurgency operations, but also disrupt the integrity of the indigenous

forces that have been developed. we should expect this will occur in counterinsurgency operations, and as we saw it in iraq and historically in counterinsurgencies. also in vietnam. it is a characteristic of this kind of warfare. >> did the afghans miscount that someone died in the initial assessment? >> we will need to let that come out in the investigation. >> on the question of -- how do you know yourself that troops are not exhausted, are not at a breaking point, commanders are not exhausted? the notion there is alcohol on the base, they go off and on the base -- it is not what anyone would think typical in your area of command. how do you know that you do not

have troops at the breaking point with some troops, from ptsd? what are you doing to look at these questions yourself? >> i talked with our command chaplain come out surgeon, my command sergeant major. all of whom are traveling to all of whom are taking the temperature within their areas of responsibility, and they have entered connections. i travel on a regular basis. i have met with commanders of every one of the regional commands, and they gave me an assessment on the state of their command and the state of their campaign as they see it unfold and not just today, but how they see it unfold in 2012. i am very interested in small unit the ship because they are what generate success to the point of impact in a counterinsurgency. there could be, bar or, as your question implies, there could be troops that at an individual level due in fact demonstrate or evidence the traits ptsd.

have to complement the services in this regard. the army and marine corps have gone and long way to try to help and deployment preparation, but also while we are in theater, with behavioral health and operational stress teams, religious support teams, the constant review by leaders how the chips are doing in the context of an after-action review, and when they go home, what the service is due for the troops. >> something went terribly wrong. investigation pending. something went terribly wrong. how are you making sure

something like that does not happen again? >> very important question. we are investigating this one of the early, and i am looking at command climate of that unit, in fact, as a direct result of these actions. while i will not get into detail describing the unit or this particular event, i will be satisfied when i get the report that we have looked closely at potential -- the intruding factors. >> the supreme court began three days of oral argument on the 2010 health care law. the court looked at whether it has the authority to hear the case. that is next. the director of the cbc talks about global efforts to prevent hiv/aids.

testifying before a senate panel before the -- about the 2013 request. live coverage at 8:30 a.m. eastern. next, the supreme court hears the of oral argument on the 2010 health care law. a law that prohibits courts from striking down tax laws before they take effect. the solicitor general and challengers to the lot agree the act should not stop the supreme court ruling on the merits of the law. this is 90 minutes. >> we will hear arguments this morning in case no. 11-398, department of health and human services vs. florida. >> mr. chief justice and may it please the court. the entire injunction act imposes a pay first litigate later ruled that is central to

federal tax assessment and collection. the act applies to essentially every tax penalty in the internal revenue code. there is no recent -- reason to think congress made a special exception for the penalty imposed by section 5000. on the contrary there are three reasons to conclude the act applies here. first, congress directed the penalty shall be assessed and collected in the same way. congress provided the penalties included taxes for any assessment purposes. the penalty is the indication of attacks. congress directed the penalty shall be assessed and collected in the same manner as taxes. that directive triggers -- that

derivative triggers the anti- injunction act which provides that "no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person." >> well, that depends, as - as the government points out on whether that derivative is a directive to the secretary of the treasury as to how he goes about getting this penalty, or rather a directive to him and to the courts. all -- all of the other directives there seem to me to be addressed to the secretary. why -- why should this one be directed to the courts? when you say in the same manner, he goes about doing it in the same manner, but the courts simply accept that -- that manner of proceeding but nonetheless adjudicate the cases. >> well, i think i have a three- part answer to that, justice

scalia. first, the text does not say that the secretary shall assess and collect taxes in the same manner. it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly. >> well, he's assessing and collecting it in the same manner as a tax. >> well, the assessment -- the other two parts of the answer are, as a practical matter, i don't think there is any dispute in this case that if the anti- injunction act does not apply, this penalty, the section 5000a penalty, will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. there -- there are three main differences. first, when the anti-injunction act applies, you have to pay the tax or the penalty first and then litigate later to get it back with interest. second, you have to exhaust administrative remedies. even after you pay the tax you

can't immediately go to court. you have to go to the secretary and give the secretary at least 6 months to see if the matter can be resolved administratively. and third, even in the very carefully defined situations in which congress has permitted a challenge to a tax or a penalty before it's paid, the secretary has to make the first move. the taxpayer is never allowed to rush into court before the tax - before the secretary sends a notice of deficiency to start the process. now if -- if the anti-injunction act does not apply here, none of those rules apply. that's not just for this case. it will be for every challenge to a section 5000a penalty going forward. the -- the taxpayer will be able to go to court at any time without exhausting administrative remedies. there will be none of the limitations that apply in terms

of you have to wait for the secretary to make the -- >> why -- why will the administrative remedies rule not be applicable -- exhaustion rule not be applicable? >> well, because if the anti- injunction act doesn't apply there is -- there is no prohibition on courts restraining the assessment or collection of this penalty, and you can simply -- >> well, but courts apply the exhaustion rule. >> why couldn't the court -- why is there no injunction? >> you could do that, i think as a matter of common law or judicially impose doctrine but in the code itself -- i mean, the anti-injunction act is an absolutely central law about taxes. the code says you must pay the tax first and then litigate. in addition, it says you must -- it's not common law, it's in the code. you must reply for a refund.

many of these provisions are extremely specific with very specific -- >> they would appear ply even if they -- appear ply even if they rule not jurisdictional even the court applies it in similar cases. the constitutionality of the social security act was at issue and the government waived its right upon the application of this act. of course, if it's jurisdictional, you can't waive it. are you asking us to overrule the davis case? >> it was decided in a period when this court interpreted it as codifying the prestatutory equitable principles that usually but not always prohibited a court from enjoying the assessment or collection of taxes. so that understanding which is

what was the basis for the hell big-davis decision it was rejected by the court and in a series of subsequent cases. so i would say effectively, the davis case has been overruled by subsequent decisions of this court. >> mr. long, why don't we simply follow the statutory language. i know that the davis case has been overtaken by later cases but the language of the anti-injunction act no suit shall be maintained. it's remarkly similar to the language that was at issue earlier. those civil actions shall be instituted and no suit may be maintained contrast with the

tax injunction act. it said the court shall not enjoin. that tax injunction act is the same pattern as 2283 which says courts of the united states may not stay a preceeding in state court. so both of those formulas the t.i.a. and the no injunction against the state court are directed to court the anti-injunction act like the statute at issue in read alsevere saying no suit shall be maintained. and it has been argued that it was scissor directed in terms of court directed. >> right. well, this court has said several times that the tax injunction act was based on the anti-injunction act. you're quite right the language is div. but we submit that the anti-injunction act itself by

saying that no suit shall be maintained is addressed to courts as well as litigants. a case cannot go from beginning to end without the action of the court. >> how is that different when it says no action shall be maintained andiness tute. anything turn on that? >> perhaps a party could initiate an action without the active corporation of the court but to maintain it from beginning to end, again requires the court's corporation and even if -- i mean, if the court were inclined to say the initial matter, if this was coming before us for the first time given all of your recent decisions on jurisdiction that you might be inclined to say this is not a jurisdictional statute. a lot of water has gone over the dam here.

this is a jurisdictional statute. congress has not disturbed those decisions. >> well, the court has said that many times but is there any case in which the result would have been different if the anti-injunction act were not viewed as jurisdictional but instead were viewed as a mandatory claims processing rule? >> there are certainly a number of case where is the court dismissed saying it is jurisdictional. as i read the cases, i don't think any of them would necessarily have come out differently because i don't think we had a case where the argument was, well, you know, the government has waived this so, you know, even it's not jurisdictional. >> the clearest way of distinguishing between a jurisdictional division and a mandatory claims processing rule is whether it can be waived and whether the court feels it has an obligation. now, if there are a lot of cases that call it

jurisdictional but none of them would have come out differently, if the anti-injunction act were certainly a mandatory processing rule. you that on one side. and on the other side you have davis, the sunshine an throw site cole case where there also was a waiver. and there was the williams packing case which is somewhat hard to understand as viewing the anti-injunction act as a jurisdictional provision. the court said that there could be a suit if there was no way the plaintiff could win and if there was no harm. doesn't that sound an i quitable exception to the anti-injuppings act? >> no, i think the best interpretation of the court's cases is that it was interpreting a jurisdictional statute. even if you have doubt about the cases, there's more than

that because congress is not only disturbed this court's decision stating that the statute is jurisdictional. they've passed numerous amendments to the anti-injunction act. >> it seems you can't separate the two points. the idea that congress has ayess what we said is only consistent. we've gone back and forth and whether there is a jurisdictional issue or not. even if congress has ayest it, what you have said has been consistent for r50 years. the period of inconsistency was new the first 50 years, 1967 . there was a period, i said when the court was allowing extraordinary circumstances, ex-serchingses -- exeption, and you've been utterly consistent.

>> there was south carolina and that case can also be understood as a kind of equitable exception to the rule would be inconsistent with the thrule is -- that the rule is an exception. >> it's the court interpreting a jurisdictional statute as it would interpret any jurisdiction and deciding it's a very narrow exception. >> the court looked at the long history of appellate issues of being jurisdictional in its traditional sense but the power of the court to hear the case. from all the questions here, i count at least four cases in the court's history where the

court has accepted a waiver by the slissor general and reached the tax issue. i have at least three cases one of them just mentioned by justice cageen where exceptions to that rule were read in. given that history, regardless of how we've defined jurisdictional statutes vs. claim processing statutes in recent times, don't -- isn't the fairer statement that congress has accepted, that in the extraordinary case we will hear the case? >> no no, justice soto mayor because in of these amendments which have come in the 19 707's and the 1990's, in the 2000 congress has framed the limited exception to the anti- exemption acts. and it's saying not with standing section 7421.

>> those in which it specifically doesn't want the court to, it has to be clearer? >> but congress is not with standing 7421, the court shall have jurisdiction to retrain the assessment and retrain the collection of -- >> assuming that we find that this is not jurisdictional, what's -- what do you see occurring if quawe call this a processing rule. what kinds of case doss you imagine that courts will reach? >> right. well first of all, i think you'll be saying that for the refund statute as well as for the anti-injunction act which

has similar wording. so if it is not jurisdictional that's also going to apply to the refund statute, the statute that says you to first ask for a refund and file within a certain time. so it would be -- it would be both of those statutes and you know, we're dealing with taxes here. >> that wasn't my question. my question was if we deem this a mandatory claim processing rule -- >> right. >> what case doss you imagine the courts will reach on what grounds? assuming the government does its job and comes in and raises the a.i.a. as an immediate defense? what -- where can a court then reach the question despite -- >> that would certainly be the first class of cases that occurs to me where if the government does not raise it in a timely way it would be waived. i would think they would get a suit going that wouldn't

immediately be apparent. >> what other types of cases? >> i don't think you're going to come up with any. i think your response is you can say that about any jurisdictional rule. if it's not jurisdictional, you're going to have an intelligent federal court deciding whether you're going to make an exception. all federal courts are intelligent. 12k3w4r50eu6rbing it seems to me it's a question you cannot answer. why should there be any jurisdictional rules. >> and justice scalia, honestly, i can't predict what will happen. but i would say that not all people who litigate about federal taxes are necessarily rash unanimous. i think there would be -- >> you are going to lose the

second half of your argument so far in jurisdiction. i'm probably leaning in your favor on jurisdiction. but, where i see the problem is in the second par because the sect pard says restraining the assessment or collection of any tax. now, here, congress has not used the word "tax." what it says is "penalty." more over this is not in the internal revenue code but for purposes of collection. and so why is this a tax and i know you point to certain sentences that tax about taxes within the code. and this is not attached to a tax. it is attached to a health care requirement. what does it fall within that word? >> well, the first point is our initial submission is, you don't have to tchearm this is a tax in order to mind the the

anti-injunction act applies because congress very specifically says that it shall be assessed and collected in the same manner as tax even if it's a tax penalty and not a tax. >> that doesn't mean the a.i.a. applies. i mean -- and then they provide some exceptions. but that doesn't mean the a.i.a. applies. it says in the same manner as. that is being the manner of. well, that is being applied or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since. the reasons for the a.i.a. are 2%, interference with revenue sources. and here an advance attack on this does not interview with

the collection of revenues. i mean, you've read the argument and survived. but i'd like to know what you think succinctly. >> specifically on the argument that it is actual lay tax even setting aside the point that it should be assessed and collected in the same manner as a tax. the anti-injunction act uses the word tax. it doesn't define it. tax is not defined anywhere in the internal revenue code. the tax had a very broad definition. it's part of the taxpayers ian yull income tax return are. whether you toe ability is based on your income. it's assessed and collected by the i.r.s. >> for the reasons that justice

briar said. and i thought we had a principle that ousters of jurisdiction or narrowly construed. unless it's clear, courtses are not deprived of jurisdiction. i mind it hard to think that this is clear. whatever else it is. it's easy to think that it's not clear. >> well, i mean, the anti-injunction act applies not only to every tax in the code but as far as i can tell every tax penalty in the cofmente >> you said before and i think you were quite right that the tax injunction act is model on the anti-injunction act. and under the injunction act, what can't be enjoined is an assessment for the purpose of raising revenue.

the tax injunction act does not apply to penalties that are designed no deduce compliance with the law rather than to raise revenue. this is not a revenue raising measure because if it's successful nobody will pay the penalty and there will be no receive now race. >> well, in bob jones, the court said they had gotten out of the business of trying to determine whether an exaction is primarily raising or primarily regulatory. and this one is expected to race very substantial amounts of revenues, at least $4 billion a year. >> it's off the statute where it denominated the exaction as a tax. here we have one where the congress is not denominating.

>> that's absolutely right. and that's obviously why -- there would be no dwhea the anti-injunction laws. but even the section of the code that you referred to previously, the one following 7421 the a.i.a., it duds very clearly make a different 7422 make a difference between tax and penalties, very explicit. >> yes, it does. that is correct. and there are many other places in the code -- >> the best collection i found was on page 16, 17. he has a whole list. look all those up. it seems to me that they all fall into the categories of either, one, these are penalties that were penalties asissed for not paying taxes. in some instances they were

redeemed by the code to be taxes. now, what we have here is something that's in a different statute that doesn't use the code tax once except for a collection device and in fact, in addition the a.i.a. reason which is to say to the solicitor general, we don't hear what you think. we in congress don't want you in court where the nevada new of a state for the revenue of the federal government is at stake. and therefore you can't wait. now, i got that. here it's not at stake and here are all the differences i just mentioned. i asked that because i want to hear your response. >> there are penaltys that you can't relate to some other tax provision. there's penalty for selling

diesel fuels that doesn't comply with e.p.a.'s regulations. there are all kinds of penalties in the code and i think -- >> mr. long, there are places in this act, fees and penaltys that were specifically put under the injunction act. there's one on heal care plans, pharmaceutical manufacturers where congress said the act is triggered for those. it does not say that here -- wouldn't that be meant for a dimpletsflulet >> they didn't use the language "the anti-injunction act." but in section 9010, it referred to the part of the code where the anti-injunction act is. it picks up losses of administration. but those are fees an they're

not -- congress did not provide, you know, in the actions themselveses that they should be paid as part of a tax return. so there were free-standing fees so by using that language, congress plugged in a whole set of rules to collect and administer the themes. but to examine nation, privacy, a whole series of additional things so i think it would be a mistake to look at that language and say, oh, here's congress saying they want the anti-injunction act to apply. they're actually doing more than that. and yes, i grant you, you could look at section 5,000-a, the individual coverage requirement say, well, it could have been clearer. that is certainly true. but again they were trying to establish a lot. >> it's easier to talk about

this case if we just forget the words "for the purpose ofry straining assessment or collection." in a sense that brings the jurisdictional question and justice breyer's question together. it seems to me you could just comment on that language. is that sort of language usually contained in the jurisdictional provision? you often don't know the purpose of a suit until it was underway. i could see it was malicious prosecution. >> it does strike me honestly as a bit unusual. but this is an old statute. the core language is essentially unchanged since 1976. i think that's part of the explanation for it. and again, it's -- you know, it's become the center of a series of provisions that very carefully control the circumstances in which

litigation about federal taxes can take place. >> mr. long, if there's another argument that has been made that i would you to address and that's all this talk about tax penalty because this suit is not changing the -- challenging the penalty. this is a suit that is challenging the must-buy provision. and the argument is made that if, indeed must buy is constitutional, then these come play taints -- come play taints will not resist the penalties. what they're thinking is the determination, must buy requirement. if that's so, that's the end of the case. if it's not, so they're not

resisting the penalty. >> well, i think that argument doesn't work for two reasons. i mean, first if you look at -- the playoffs own complaint, they cheerily challenge before the minimum coverage and page 122. they challenged the argument that the individuals atained health care coverage or pay a pay a penalty. if that's the problem -- they count take that out of the complaint. yes, i mean, it's -- eat complaint would be filed. but still i think that's a serious problem. i don't think you can separate the minimum coverage requirement from the penalty because the penalty is the sore means of inforcing the minimum government requirement. if the court would render a

job. the requirement is invalidate. anybody who doesn't have insurance has to pay the penalty, then they'd have to pay a tenlt equal to the cost of insurance and they wouldn't even have insurance. >> they say they want to go obey the law. your argument puts them in the position to and what is your answer to that? >> well, of all i can't find that in the record, i don't see statement that they will, you know, every incur a penalty under any circumstances. but even if they were so, what this court has said and americans united is the anti-injunction act bars any -- not just two enjoying the collection of your own taxes but enjoy the taxes of anyone's taxes. even if it were really true that these playoffs were not

interested in the penalty and woulder never pay the penalty because they would success the ineventable result su -- and so it would still be barred because it would be a suit that would prevent the collection of some -- >> let me take us back to justice kennedy's question for the purpose of language, i take it you interpret the statute to me. is it the following is that correct? >> this court similar kind of argument was being made by the playoff. in that case, look,, you know, where are the -- it's inevitable that this is what this suit about. there are two sides of the same point.

the primary purpose of the suit. you can't get away from that. >> the statute has two serkses. one is the you have to have insurance. the state has two different sets of exceptions. coors ponding. you're trying to stheakt the taut says, well, it's your choice, either buy insurance or pay a fee. but that's not the way the statute reads and congress must be supposed that they made a decision. that it should instead be a regulatory command and a k34e7b89 attached to that man. i >> i would think the reasonable way to read the entire statute is that it does impose a single

obligation to pay a penalty, if you are an applicable individual and you're not subject to an exemption. if you look at the exemptions from the penalty. sh i mean, the very first one is, you're exempt from the penalty buse you can't afford to purpose insurance. it doesn't seem reason to believe me to enter fret statute as congress having said, well, you know, this person is exempt from paying a penalty because we find they can't afford to buy insurance. however they still have a legal obligation to buy insurance. that just doesn't seem reasonable. so i do think -- i certainly wouldn't argue it's clear. but that's the best way to understand the statute as a whole. but again, i would say that's not essential to the we're discussing now of whether the anti-injunction act applies.

>> but you del me why you think the solicitor general is reading, creates a problem? >> well, in going back to -- so if the result would say, i was no -- that is that you're a fictional bash but there's an exemption for those items that congress has december designated and it would probably create the fewest problems as i understand it. i mean, my main objection is i don't think it makes a whole lot of sense. basically the solicitor general every penalty in the sfwernl revenue code -- >> that's not -- that's carry it too far because he says if a penalty is designating that's

most of the code, the tax code. and he says for those portions of the affordable care act that designate things like taxes the a.i.a. applies. so it's only -- and i haven't found another statute. it's only for those in which congress has designated something solely as a penalty. but it's a task. /ñ???????

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>> ray martin from christian connections for international health. thank you for being here. considering what we faced not too many years ago, all of this talk about prevention and the tools that we can bring. i have a comment about combination prevention. the four components that you mentioned in your slide were driven as prevention, voluntary male circumcision, and correct and consistent use of condoms. a different kind of for the global aids coordinator talk about the importance -- at different times i have heard the global aids coordinator talk about the importance of prevention. by that i think he meant the various aspects of sexual behavior. i am wondering if the difference in perspectives and priorities between the global aids coordinator and the cdc, or why behavior change did not appear on your list of priority components of combination prevention. >> thank you. from the rear. >> donna very from partners in health. this is world tb week. ines the beginning, so i

apologize if you commented on this. but it is clear that we need to build up tv programs. -- tb programs. we are incredibly disappointed in what the administration has asked for this year in bilateral tb funding. we would love to hear more about that. >> ok, sir. >> carlson is with the aids institute. thank you for what your doing. you mentioned that you are focusing the money and programs on the community's most impacted. i want to say thank you for that. my question is the affordable care act. it is in the news lately. how is that going to impact hiv prevention in the united states?

>> kershaw we take one more? -- >> shala we take one more? >> thank you. i'm david jameson from [unintelligible] i wanted to thank you very much for a very clear and encouraging presentation. i want to come back to your comments on the unique cost of care. we have been very involved in driving down the unique cost of care. among those is the drugs. we work very well in the field and successfully in the laboratory area. we found it much harder to drive down unit costs of equipment and diagnostic test in that area. what is being done on harmonization and have -- and

standardization that reduces the overall cost? i wonder if you have any thoughts on the overall cost of the commodities themselves in laboratory work. how would one set about driving those costs down? >> these are all wonderful questions, and all critically important issues. in terms of behavior change, this is and remains and will remain an important part of the epidemic response. the latest central review has been documented in various countries and has a very important role. we would see those programs continuing. similarly, the effort to reduce the number of partners, which has not been as well documented, but if effective, would continue. in terms of tuberculosis, it

remains a major killer and a major challenge. and some of you know, i spent many years working on tuberculosis. i have to be careful to keep my comments short on this topic. we need to be sure with tuberculosis that we never lose sight of the basics. i did review yesterday's a country program where they are treating tb and they ran out of first-line drugs. that should never ever happened. and yet, that is the case in different parts of the world. we have to keep the core programs functioning, and functioning effectively. we also ought to make sure that the patient always remains the vip of the program. and there are programs which have been attempting to do that,

more or less affectively. but that is a true -- crucial concept. and the third point i would make is, tb is a disease that takes a long time to treat. it is curable, but it takes a long time to treat. we do not know for certain yet, but my read of the data in current -- with current technology in many countries we can make huge progress. we can drive down daetz from t.a.r.p. -- deaths from tuberculosis and a new infections from tuberculosis is inevitably. but the number of cases that arrives from those who contracted months or years ago is likely to continue for some time.

we need patience and continued assistance to continue long time and effective treatment. that is something we need to do, and in short infection control is something we need to do a much better job at. we know about infections in health care facilities can account for a significant proportion of new tuberculosis cases, especially with those living with hiv. there are some simple low-cost ways to separate people with profs. getting them out of a hospital, or not hospitalizing them in the first place. we have seen a lot of progress in tuberculosis. other programs have a lot to learn from tuberculosis, in terms of accountability outcomes of individual patients, but we need to keep at it for a long time. the affordable care act will bring health coverage to

millions of americans who do not have it today. the results of that may be somewhat reduced pressures on some of the treatment programs, such as brian wade. but that is years from now. until then, we continue to have a challenge to make sure that people living with the disease have access to care. it will generally give access to a form of care for hiv- positive people, but it will not limit the age of rape programs. that is something we need to continue to do from the public health field. the issue of inefficiencies in laboratory networks and

commodities is important. we're looking at it in this country. in the united states we have seen tremendous fiscal pressure on public health departments throughout the u.s.. compared to three years ago, there are about 50,000 fewer people working in health departments in the u.s. than there were just three years ago. one of the things we're doing at the cdc is a laboratory efficiency to try to identify shared resources to drive costs down. we have seen it from a variety of transport issues that it is harder to drive costs down. we need to work in that area. we also need to look at new technologies. for example, a cdc scientists have developed in another field a rapid blood test to my point of care test for plague. it is highly accurate. and new technologies have the potential to drive costs down -- to drive costs up because they're complicated, or drive costs down because they are simple and accurate.

>> i will follow-up on the tuberculosis question. while acknowledging there is a lot more that can be done better for existing programs and treatments, what is your perspective on new tools, new diagnostics, new drugs to invest in tuberculosis for the long haul? >> [unintelligible] >> one other thing added to that. will we see focus on hiv infection at the aids conference, considering there is a high infection rate between tuberculosis and hiv/aids?

>> my question was about the domestic response. you said of the four priorities, 75% of the dollars will be prioritized, the fourth one will be around viral load. i do not know if that is community or medical. do those programs toward the medical community or the medical provider? if you could tell me about what that looks like. >> thank you for your presentation. it is really wonderful to be seeing a attention to cost and cost effectiveness. we have not always have those numbers, and being able to show these improvements and increments. but with an eye to aid its 2012

coming in, and realizing we actually talked to ourselves, this committed group of people who are well versed in public health and development and hiv/aids, and realizing this great opportunity we have a word the american public and people in congress who has -- who have not been following either hiv/aids or the elements in public health are going to be potentially exposed to what we hope could be reaffirming and exciting and new ideas. sometimes when we limit the discussions to cost and cost effectiveness, we forget to make the next jump to value, and sometimes surprising value. and the difference in difficult budgetary times, what is the value in funding or increased funding. and that can be different from person actually -- but from the perception of the incremental cost of doing more and the cost

of transmission verses the value of eliminating hiv/aids. those are very different argument and very different justifications for budgetary improvements even. i hired are, maybe. -- a higher bar, maybe. when i came back from overseas and from there was academic and i found a range of people. there were those who thought you could do nothing about hiv/aids and every dollar you spend was utile current -- was futile. similarly, i think we get caught right now with of money going to foreign assistance for an international response to more money being spent here at home. a lot of these creative

solutions and value-added leaves can come from the space in between those extremes. it seems to me when i came to work in d.c., a lot of the improvements where were able to make with scaling up provider testing and our efforts here within the city, they came from what we're doing abroad. cdc is uniquely paste to tell some of these value added stories because of these -- your role not just with pepfar, but with the state health department. what are some of the value out of stories that people are unaware of and are the difference between driving incidences down a little bit. >> i am from nih.

thank you for the presentation i worked -- for the presentation. i work in both africa and asia. when we work with hiv/aids, and you mentioned before the walkers, the one who provides the services. we're looking for the increasing quantity, quality, and retention of health workers in their own countries. we have been working in different areas. you mention that cdc cannot do it alone. as a u.s. agency, how is your plan to work together with other agencies so we can provide prevention and treatment and care services to the people and expanded in a sustainable way? >> first on tuberculosis, we have seen significant progress on new diagnostics in terms of

development in the laboratory -- laboratory development in the laboratory. we now have to define the role of those new diagnostics. for example, we have rapid tests for tb and present this and resistance. that could be done in a high- volume to rapidly get people out of the hospital to reduce spread. i do not know if that is the best place to do it, but it is something to figure out. one technology that i'm quite excited about is led fluorescent at my prosperity -- led fluorescence microscopy. one area of concern was where it was available in small supply. many companies -- countries have very little of electrical supply and maybe one-third have poured

quality. we tried everything and solar does not quite work. batteries may not last long. but led is a great technology. you do not need a big battery to last a long time. and fluorescent increases your throughput. i do not know if this is an area that will be highly effective or scalable, but let's figure it out.

if we have new technologies and we need to use them. we have some inklings of accommodations in drug treatment that may get to arguses down from six months to four months. -- get tuberculosis down from six months to four months. i predicted a significant reduction in the length of treatment. i do not know if it will be another decade before we do, but it grows slowly and it is tough to treat. but it is important that we produce a wide regiment selection. a vaccine would undoubtedly be a nobel prize. we have made progress in some of the science there. the very long way away from what we need to make it happen. but it is a very important thing to happen. you will see a lot more on this in the international aids conference. i will mention in passing critical meningitis. is it terrible virus. it is a fungal disease and often fatal.

and it is preventable hot with in expensive medications -- preventable with inexpensive medications. cdc scientists have developed a rapid test for it. and just as we give medicine to tocpc, we may be able -- to prevent cpc, we may be able to develop the same for this meningitis. and then figuring out what the role for those treatments are, how best and most efficiently they can be used. the question about how we will prioritize prevention funds in this country, 75% aren't core prevention's and scaling them up to population impact. i think we are still figuring out how to use viral load. we would like to see a convergence of the use of viral

load to hold the entire community accountable for how we are doing at stopping the hiv. some of the virus that is not surprised is experiencing a ravaging of their immune system and other parts of their body by the hiv virus. the same time, they are increasing the risk to partners. we hope to see a convergence of accountability. already, about half of the states get viral load. we are still figuring out what the best way is to monitor it. and the volume of viral load testing is high. in ensuring that we are able to

get the information through laboratory systems to duplicate it, not simple. but this is a critical area and to look at, ensuring that we have complete confidentiality for individuals, and of course, by saying we want to get viral load suppression and a community level, we say at note -- at all times that no one is suggesting mandatory treatment for hiv. but we are suggesting the treatment facilities' use that information to hold themselves accountable for what they are reaching out effectively to ensure that people aren't being given every up -- are being given every opportunity to come

in for treatment. in terms of the bayou proposition i would make a few comments. -- the value proposition i would make a few comments. first, it is important we do not of report -- overpromise. hiv will be with us and it will be until we have a vaccine. but it can be in a much less burdensome way. if we can drive down incidences'. we can prevent maternal transmission to invent. we can make sure it is not the crisis that it is today. -- we can prevent maternal- infant transmission. and we can make sure it is not a crisis that it is today. ultimately, one of the wonderful thinkers in public health is jeffrey rose, whose book "preventive medicine" says basically, the best case for prevention is that it is better to be healthy and sick and it is better to be alive than dead. that is the real proposition for public health. but there is a lot of value not only to the hiv care that we are doing, but also the

strengthening of the systems, whether that is for accountability or clinical care, or systems for linkage or advocacy and critical providers. there is no one best way to communicate this to audiences. there is no one does message. but to different audiences there are effective messages, and i think we need to continue to show the reality. because that is the best case for our preventive efforts. in terms of health care workers, we have done an enormous amount in training and development of health care workers in nursing and medical schools and residencies in public health. we need to continue to build on that. we need to support health care workers in developing countries, and in this country, where we are seeing shortages in the areas where there is the greatest need. that is another strong case for

team based care, giving people in communities who are trained and empowered and able to provide lifesaving interventions. they will be critically important going forward. >> where going to close with leadership. we have talked about having the value proposition put forward, consistent messaging, and making it clear in science and evidence based ways. clearly, leadership remains very fundamental. we have seen this with the impact that president bush has had, president obama, secretary clinton, yourself, mayor bloomberg. the polio case in india in this last phase was very much at the level of indian leadership. maybe you can say a few words

about what we should expect going into july, and what we should expect, we should be calling for with respect to the role that the leadership will play. sometimes in these conferences in the past there has been dramatic expressions of leadership. other times, there has been less than adequate or optimal. >> week have seen -- we have seen u.s. edition in this global it for much of the past decade, starting with president bush and with the current administration. we have seen tremendous leadership from secretary clinton and president obama: koran 83 generation with ambitious targets that are achievable -- calling for an aids-free generation with ambitious targets that are achievable. how to be blunt, -- to be blunt,

look at south africa. what a dramatic turnaround from the nile to acceptance and leadership -- from denial to the acceptance and leadership. we need to hold countries accountable for continuing and achieving the kind of leadership. and the u.s., we need to make sure that there is not only the leadership that we have at the federal level, but also the state and local level, where we are seeing states not treat people with hiv. we are seeing localities' step back from commitments that they have had before. leadership at every level is the strongest predictor of success or failure of hiv and other public health programs. >> thank you so much for spending this time with us. please join me in thanking him.

[applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> the supreme court finished the first of three days of arguments on the fate of the obama administration's overhaul of the nation's health-care system. the court looked at whether they have the authority. that is next on c-span. today, the court looks at the constitutionality of the individual mandate part of the

law. "washington journal" begins at 7:00 a.m. eastern. >> today, military commanders instead of -- in charge of cyber and strategic command have a panel about the president's 2013 budget request. live coverage starts at 9:30 eastern on c-span3. >> next, the supreme court hears the argument on the 2014 health care law. both the solicitor general and challenges to the law agreed that the ax should not stop at the supreme court from ruling on the merits of the law. this is a 90 minutes. >> we will hear argument this morning in case number 11-398, department of health and human services v. florida. mr. long. >> mr. chief justice, and may it please the court. the anti-injunction act imposes

a pay first, litigate later rule that is central to federal tax assessment and collection. the act applies to essentially every tax penalty in the internal revenue code. there is no reason to think that congress made a special exception for the penalty imposed by section 5000a. on the contrary, there are three reasons to conclude that the anti-injunction act applies here. first, congress directed that the section 5000a penalty shall be assessed and collected in the same manner as taxes. second, congress provided that penalties are included in taxes for assessment purposes. and third, the section 5000a penalty bears the key indicia of a tax. congress directed that the section 5000a penalty shall be assessed and collected in the

same manner as taxes. that derivative triggers the anti-injunction act which provides that "no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person." >> well, that depends, as - as the government points out on whether that derivative is a directive to the secretary of the treasury as to how he goes about getting this penalty, or rather a directive to him and to the courts. all -- all of the other directives there seem to me to be addressed to the secretary. why -- why should this one be directed to the courts? when you say in the same manner, he goes about doing it in the same manner, but the courts simply accept that -- that manner of proceeding but nonetheless adjudicate the

cases. >> well, i think i have a three- part answer to that, justice scalia. first, the text does not say that the secretary shall assess and collect taxes in the same manner. it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly. >> well, he's assessing and collecting it in the same manner as a tax. >> well, the assessment -- the other two parts of the answer are, as a practical matter, i don't think there is any dispute in this case that if the anti-injunction act does not apply, this penalty, the section 5000a penalty, will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. there -- there are three main differences. first, when the anti-injunction act applies, you have to pay the tax or the penalty first and

then litigate later to get it back with interest. second, you have to exhaust administrative remedies. even after you pay the tax you can't immediately go to court. you have to go to the secretary and give the secretary at least 6 months to see if the matter can be resolved administratively. and third, even in the very carefully defined situations in which congress has permitted a challenge to a tax or a penalty before it's paid, the secretary has to make the first move. the taxpayer is never allowed to rush into court before the tax - before the secretary sends a notice of deficiency to start the process. now if -- if the anti- injunction act does not apply here, none of those rules apply. that's not just for this case. it will be for every challenge to a section 5000a penalty going forward. the -- the taxpayer will be able to go to court at any time

without exhausting administrative remedies. there will be none of the limitations that apply in terms of you have to wait for the secretary to make the -- >> why -- why will the administrative remedies rule not be applicable -- exhaustion rule not be applicable? >> well, because if the anti- injunction act doesn't apply there is -- there is no prohibition on courts restraining the assessment or collection of this penalty, and you can simply -- >> well, but courts apply the exhaustion rule. i mean, i know you've studied this. i'm just not following it. why couldn't the court say well, you haven't exhausted your remedies, no injunction? >> well, in -- you could do that, i think as a matter of -- of common law or judicially imposed doctrine, but in the code itself which is all -- i mean, the anti-injunction act is an absolutely central statute to litigation - >> yes, yes. >> about taxes. and the code says, first it says

you must pay the tax first and then litigate. so that's the baseline. and then in addition it says you must -- i mean, it's not common law. it's in the code -- you must apply for a refund, you must wait at least 6 months. that's -- many of these provisions are extremely specific, with very specific time limits - >> they would apply even if the rule is not jurisdictional. the only difference would be that the court could enforce it or not enforce it in particular cases, which brings me to the davis case, which i think is your biggest hurdle. it's a case quite similar to this in which the constitutionality of the social security act was at issue, and the government waived its right to insist upon the application of this act. of course, if it's jurisdictional, you can't waive it. so are you asking us to overrule the davis case? >> well, helvering v. davis was decided during a period when this court interpreted the anti-injunction act as simply codifying the pre-statutory equitable principles that

usually but not always prohibited a court from enjoining the assessment or collection of taxes. so that understanding, which is what was the basis for the helvering v. davis decision, was rejected by the court in williams packing and a series of subsequent cases -- bob jones. and so i would say effectively, the davis case has been overruled by subsequent decisions of this court. >> mr. long, why don't we simply follow the statutory language? i know that you've argued that the davis case has been overtaken by later cases, but the language of the anti- injunction act is "no suit shall be maintained." it's remarkably similar to the language in -- that was at issue in reed elsevier. "no civil action for infringement shall be instituted."

and that formulation, "no suit may be maintained," contrasts with of the tax injunction act, that says the district court shall not enjoin. that tax injunction act is the same pattern as 2283, which says "courts of the united states may not stay a proceeding in state court." so both of those formulas, the tia and the no injunction against proceedings in state court, are directed to "court." the anti-injunction act, like the statute at issue in reed elsevier, says "no suit shall be maintained," and it has been argued that that is suitor- directed in contrast to court- directed. >> right. well, i mean, this court has said several times that the tax injunction act was based on the anti-injunction act. you are quite right, the

language is different. but we submit that the anti- injunction act itself, by saying that no suit shall be maintained, is -- is addressed to courts as well as litigants. i mean, after all, a case cannot go from beginning to end without the active cooperation of the court. >> but how is that different from no civil action for infringement shall be instituted -- "maintained and instituted"? anything turn on that? >> well, it's -- i mean -- perhaps a party could initiate an action without the act of cooperation of the court, but to maintain it from beginning to end again requires the court's cooperation. and -- and even if -- i mean, if the court were inclined to say as an initial matter if this statute were coming before us for the first time today, given all of your recent decisions on jurisdiction, that

you might be inclined to say this is not a jurisdictional statute. a lot of water has gone over the dam here. the court has said multiple times that this is a jurisdictional statute. congress has not disturbed those decisions. to the contrary - >> counsel - >> well, congress said that many times, but is there any case in which the result would have been different if the anti-injunction act were not viewed as jurisdictional but instead were viewed as a mandatory claims processing -- rule? >> there -- there are certainly a number of cases where the court dismissed saying it is jurisdictional. as i read the cases, i don't think any of them would necessarily have come out differently, because i don't

think we had a case where the argument was, well, you know, the government has waived this, so, you know, even -- if it's not jurisdictional - >> well, the clearest -- the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is whether it can be waived and whether the court feels that it has an obligation to raise the issue sua sponte. now, if there are a lot of cases that call it jurisdictional, but none of them would have come out differently if the anti- injunction act were simply a mandatory claims processing rule, you have that on one side. and on the other side, you have davis, where the court accepted a waiver by the solicitor general. the sunshine anthracite coal case, where there also was a waiver, and, there's the williams packing case, which is somewhat hard to understand as viewing the anti-injunction act as a jurisdictional provision. the court said that there could be a suit if -- there is no way the government could win, and the plaintiff would suffer irreparable harm. now, doesn't that sound like an equitable exception to the anti- injunction act? >> no. i think the -- i think the best interpretation of the court's cases is that it was interpreting a jurisdictional statute.

and, indeed, in williams packing, the court said it was a jurisdictional statute. but, again, even if you have doubt about simply the cases, there is more than that because congress has -- has not only not disturbed this court's decision stating that the statute is jurisdictional, they've passed numerous amendments to this anti-injunction act. >> well, it seems - you can't separate those two points. the idea that congress has acquiesced in what we have said only helps you if what we have said is fairly consistent. and you, yourself, point out in your brief that we've kind of gone back and forth on whether this is a jurisdictional provision or not. so, even if congress acquiesced in it, i'm not sure what they acquiesced in. >> well, what you have said, mr. chief justice, has been absolutely consistent for 50 years, since the williams packing case. the period of inconsistency was after the first 50 years, since the statute was enacted in 1867. and there was a period, as i said, when the court was

allowing extraordinary circumstances exceptions and equitable exceptions, but then, very quickly, it cut back on that. and since - and since williams packing, you have been utterly consistent - >> well, even since williams packing, there was south carolina v. regan. and that case can also be understood as a kind of equitable exception to the rule, which would be inconsistent with thinking that the rule is jurisdictional. >> well, again, i mean, i think the best understanding of south carolina v. regan is not that its an equitable exception, but it's the court interpreting a jurisdictional statute as it would interpret any statute in light of its purpose, and deciding in that very special case, it's a very narrow exception, where the - >> mr. long, in bowles, the court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the court to hear a case.

from all the questions here, i count at least four cases in the court's history where the court has accepted a waiver by the solicitor general and reached a tax issue. i have at least three cases, one of them just mentioned by justice kagan, where exceptions to that rule were read in. given that history, regardless of how we define jurisdictional statutes versus claim processing statutes in recent times, isn't the fairer statement that congress has accepted that in the extraordinary case we will hear the case? >> no. no, justice sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000's, congress has actually framed the limited exceptions to the anti- injunction act in jurisdictional terms.

and it's written many of the express exceptions by saying notwithstanding section 7421 - prove doesn't that just that it knows that the court will impose a claim processing rule in many circumstances, and so, in those in which it specifically doesn't want the court to, it has to be clearer? >> well, but congress says, notwithstanding 7421, the court "shall have jurisdiction to restrain the assessment and collection of taxes in very limited" - >> could you go back to the question that justice alito asked. assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? what kinds of cases do you imagine that courts will reach? >> right. well, first of all, i think you would be saying that for the

refund statute, as well as for the anti-injunction act -- which has very similar wording, so if the anti-injunction act is not jurisdictional, i think that's also going to apply to the refund statute, the statute that says you have to first ask for a refund and then file, you know, within certain time -- so it would be -- it would be both of those statutes. and, you know, we are dealing with taxes here, if people - >> that wasn't my question. >> i'm sorry. >> my question was if we deem this a mandatory claim processing rule - >> right. >> what cases do you imagine courts will reach on what grounds? assuming the government does its job and comes in and raises the aia as an immediate defense - >> well, that's - >> where can a court then reach the question, despite - >> that would certainly be the first class of cases, it occurs to me, where, if the government does not raise it in a timely way, it could be waived.

i would think plaintiffs would see if there was some clever way they could get a suit going that wouldn't immediately be apparent that - >> assumes the lack of competency of the government, which i don't, but what other types of cases? >> mr. long, i don't think you are going to come up with any, but i think your response is you could say that about any jurisdictional rule. if it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. and there will be no parade of horribles because all federal courts are intelligent. so it seems to me it's a question you can't answer. it's a question which asks "why should there be any jurisdictional rules?" and you think there should be. >> well, and, justice scalia, i mean, honestly, i can't predict what would happen, but i would say that not all people who litigate about federal taxes are necessarily rational.

and i think there would be a great - >> i just don't want you to lose the second half of your argument. and we have spent all the time so far on jurisdiction. and i accept, pretty much, i'm probably leaning in your favor on jurisdiction, but where i see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax." now, here, congress has nowhere used the word "tax." what it says is penalty. moreover, this is not in the internal revenue code "but for purposes of collection." and so why is this a tax? and i know you point to certain sentences that talk about taxes within the code -- >> right. >> and this is not attached to a tax. it is attached to a health care requirement. >> right. >> so why does it fall within that word? >> well, i mean, the first point is -- our initial

submission is you don't have to determine that this is a tax in order to find that the anti- injunction act applies, because congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. so that's one -- >> but that doesn't mean the aia applies. i mean -- and then they provide some exceptions, but it doesn't mean the aia applies. it says "in the same manner as." it is then attached to chapter 68, when that -- it that references that as "being the manner of." well, that it's being applied -- or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since the reasons for the aia are to prevent interference with revenue sources.

and here, an advance attack on this does not interfere with the collection of revenues. i mean, that's -- you have read the arguments, as have i. but i would like to know what you say succinctly in response to those arguments. >> so specifically on the argument that it -- it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax. the anti-injunction act uses the term "tax." it doesn't define it. somewhat to my surprise, "tax" is not defined anywhere in the internal revenue code. in about the time that congress passed the anti-injunction act, tax had a very broad definition. it's broad enough to include this exaction, which is codified in the internal revenue code. it's part of the taxpayers' annual income tax return. the amount of the liability and whether you owe the liability is based in part on your income. it's assessed and collected by

the irs. >> there -- there is at least some doubt about it, mr. long, for the reasons that justice breyer said, and i -- i thought that we -- we had a principle that ousters of jurisdiction are -- are narrowly construed, that, unless it's clear, courts are not deprived of jurisdiction, and i find it hard to think that this is clear. whatever else it is, it's easy to think that it's not clear. >> well, i mean, the anti- injunction act applies not only to every tax in the code, but, as far as i can tell, to every tax penalty in the code. >> mr. long, you -- you said before -- and i think you were quite right -- that the tax injunction act is modeled on the anti-injunction act, and, under the tax injunction act, what can't be enjoined is an

assessment for the purpose of raising revenue. the tax injunction act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. and this is not a revenue- raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise. >> well, in -- in bob jones the court said that they had gotten out of the business of trying to determine whether an exaction is primarily revenue raising or primarily regulatory. and this one certainly raises -- is expected to raise very substantial amounts of revenues, at least $4 billion a year by the - >> but bob jones involved a statute where it denominated the exaction as a tax.

>> that's - >> here we have one where the congress is not denominating it as a tax. it's denominating it as a penalty. >> that's -- that's absolutely right, and that's obviously why, if it were called a tax, there would be absolutely no question that the anti-injunction act applies. >> absolutely. but even the section of the code that you referred to previously, the one following 7421, the aia, it does very clearly make a difference -- 7422 -- make a difference between tax and penalties. it's very explicit. >> yes, that's -- it does, that is correct, and there are many other places in the code where - >> the best collection i've found in your favor, i think, is in mortimer caplin's brief on page 16, 17. he has a whole list. all right. so -- i got my law clerk to look all those up. and it seems to me that they all fall into the categories of either, one, these are penalties that were penalties assessed for not paying taxes, or, two, they involve matters

that were called by the court taxes, or, three, in some instances they were deemed by the code to be taxes. now what we have here is something that's in a different statute that doesn't use the word "tax" once except for a collection device, and, in fact, in addition, the underlying aia reason, which is to say to the solicitor general, we don't care what you think, we, in congress, don't want you in court where the revenue of a state -- tax injunction act -- or the revenue of the federal government is at stake, and, therefore, you can't waive it. now i got that. here it's not at stake and here are all the differences i just mentioned. so i ask that because i want to hear your response. >> well, i mean, there are penalties in the internal revenue code that you really couldn't say are related in any

-- in any close way to some other tax provision. there is a penalty -- it's discussed in the briefs -- for selling diesel fuel that doesn't comply with epa's regulations, you know. so there are all kinds of penalties in the code, and i think it's - it could be - >> mr. long, aren't there places in this act -- fees and penalties -- that were specifically put under the anti-injunction act? there is one on health care plans, there is one on pharmaceutical manufacturers, where congress specifically said the anti-injunction act is triggered for those. it does not say that here. wouldn't that suggest that congress meant for a different result to obtain? >> well, i mean, congress didn't use the language the anti- injunction act shall apply - >> no, but it -- it in section 9008 and in section 9010 - >> right. >> it specifically referred to the part of the code where the anti-injunction act is. >> right, all of subtitle f, which picks up lots of

administration and procedure provisions, but those -- those are fees, and they are not -- congress did not provide, you know, in the sections themselves that they should be paid as part of a tax return. so they were free-standing fees, and by using that subtitle f language, congress plugged in a whole set of rules for how to collect and administer the fees, and it went not just to assessment and collection -- and the irs has recognized this -- but to examination, privacy, a whole series of additional things. so i think it would be a mistake to look at that language and say, "oh, here's congress saying they want the anti- injunction act to apply." they are actually doing more than that. and, yes, i grant you, you could look at section 5000a, the individual coverage

requirement, and say, well, they could have been clearer about saying the anti-injunction act applied, and that's certainly true, but, again, they were trying to accomplish a lot. maybe - >> it's easier to talk about this case if we just forget the words "for the purpose of restraining assessment and collection." in a sense, that brings the jurisdictional question and justice breyer's question together. it seems to me -- maybe you could just comment on that language. is that sort of language usually contained in a jurisdictional provision? i mean, you often don't know the purpose of a suit until after the thing is underway. i can see it with malicious prosecution and some civil rights cases. does it strike you as somewhat unusual to have this provision in a jurisdictional case? >> it does strike me, honestly, as a bit unusual, but this is an old statute. i mean, this -- the core language is essentially unchanged since 1867, and, you know, i think that's part of the explanation for it. and, again, it's, you know,

become the center of a series of provisions that very carefully control the circumstances in which litigation about federal taxes can take place. >> mr. long, there's another argument that has been made that i would like you to address, and that is all this talk about tax penalties is all beside the point because this suit is not challenging the penalty. this is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, "must- buy" is constitutional, than these complainants will not resist the penalty. so what they're seeking is a determination that that "must- buy" requirement, stated separately from penalty, that "must-buy" is unconstitutional, and, if that's so, that's the

end of the case. if it's not so, they are not resisting the penalty. >> well, i think that argument doesn't work for two reasons. i mean, first, if you look at the plaintiff's own complaint, they clearly challenge both the minimum coverage requirement and the penalty. at page 122 of the joint appendix they challenge the requirement that the individuals obtain health care coverage or pay a penalty. >> why is that? >> if that's -- if that's the problem, it's easier to amend the complaint. they can just take that out of the complaint. so it can't turn on that. >> well, yes, i mean, it's -- or another complaint would be filed, but, still, i think that's a serious problem. but even if they had filed a different complaint, i don't think you -- in this case i don't think you can separate the minimum coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement. so -- so, first, i mean, i think these plaintiffs would not

be satisfied if the court were to render a judgment saying the minimum coverage requirement is invalidated. the penalty, however, remains standing. anybody who doesn't have insurance has to pay the penalty. then they would have to pay a penalty equal to the cost of insurance and they wouldn't even have insurance. so i don't think that would be - >> well, they say they want to obey the law, and they say that your argument puts them in the position of having to disobey the law in order to obtain review of their claim. and what is your answer to that? >> well, i mean, first of all, i can't find that in the record, in their declarations. don't see a statement that they will, you know, never incur a penalty under any circumstances. but -- but even if that were so, what this court has said in americans united is the anti- injunction act bars any suit, not just to enjoin the collection of your own taxes, but to enjoin the collection of

anyone's taxes. and so even if it were really true that these plaintiffs were not interested in the penalty and would never pay the penalty, if they were to succeed in this case in striking down the minimum coverage requirement the inevitable result would be that the penalty would fall as well, because the government couldn't collect the penalty for failing to follow an unconstitutional requirement, and so it would still be barred because it would be a suit that would prevent the collection of some of the -- >> well, let me take us back to justice kennedy's question about the "for the purpose of" language. i take it you interpret the statute to mean the following. "for the purpose of" means "having the effect of." is that correct? >> well -- well, i mean, >> well -- well, i mean, this court in the bob jones case, where a similar kind of argument was being made by the plaintiff in that case, said,

look, you know, where the -- where it's inevitable that this is what the suit is about, they're sort of two sides of the same coin, that clearly is a primary purpose of the suit. and it's -- and you can't by clever pleading get away from that. that's just the nature of the situation. >> but, mr. long, aren't you trying to rewrite the statute in a way? the statute has two sections. one is that you have to have insurance section and the other is the sanction. the statute has two different sets of exceptions corresponding to those two different sections. you are trying to suggest that the statute says, well, it's your choice. either buy insurance or pay a -- or pay a fee. but that's not the way the statute reads. and congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command. >> well, i would not argue that this statute is a perfect model this statute is a perfect model of clarity, but i do think